Update on Janus Decision

As pointed out in our June 27, 2018 Client Advisory, the Supreme Court released its decision yesterday in Janus v. AFSCME, Council 31, U.S. No. 16-466 (2018), which held that a state statute which allows public sector unions to charge non-member employees an agency service fee for activities connected with their collective bargaining activities as exclusive representative violates the First Amendment rights of those non-members. In our advisory we stated that we would provide further analysis because Massachusetts has a statute – G.L. c. 150E, §2 – which contains a requirement similar to that in the Illinois statute which was invalidated by the Court.

Two significant issues for Massachusetts employers are raised by the Janus decision. First, many employers have been making deductions for service fees from the paychecks of employees who may not be members of any of the unions which represent its employees. Second, many of those same employers are parties to collective bargaining agreements which may have provisions premised on the Massachusetts statute.

In its opinion the Court requires that employees “clearly and affirmatively consent” before service fees may be deducted from their pay because they are waiving their First Amendment right.  Slip Op. at 48. This means that an employer must assure itself of two things – (1) that each employee has consented in writing to a deduction for service fees and (2) that the consent is obtained in a manner which reasonably informs the employee that it is voluntary. In cooperation with its bargaining units, the employer should therefore determine that these requirements are satisfied. Employers will also need to promptly revise payroll systems to reflect this decision.

Regarding collective bargaining provisions, the Court did not directly address those. The collective bargaining agreement involved in Janus did, however, require payment of a service fee, slip op. at 5; the Court stated its holding in broad terms – “public-sector agency-fee arrangements are unconstitutional”, id. at 6 [emphasis added]; and it referred to a collective bargaining provision which “is found to be unlawful”, id. at 46. Given this, employers should review their agreements for language which may have to be revised through discussions with their unions. In our opinion these changes should not be subject to decision or impact bargaining requirements because they do not involve the employer’s choice to exercise a non-delegable managerial right. Instead, the Court has given employers no option by deciding that such arrangements violate the law regarding employees’ First Amendment rights.

The Court indicated that unions may have options to avoid so-called “free rider” abuses, specifically mentioning the possibility of giving non-members the choice of paying a fee for union representation in disciplinary proceedings or being denied the service. Slip Op. at 17. That sort of arrangement is between the union and the employee and should not directly involve the employer.

These issues need to be worked through carefully. We are reviewing the collective bargaining agreements between our clients and their unions to determine which may need revision. In addition, we are preparing a draft template for employees to sign when indicating their decision whether or not to authorize payroll deductions for dues or service fees.  The template can be discussed with the respective unions.

In the interim, if you have any questions please contact any one of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.


Supreme Court Holds That Requiring Union Agency Service Fees For Public Sector Union Non-Members Is Unconstitutional

In a 5-4 decision released this morning the Supreme Court decided Janus v. AFSCME, Council 31, U.S. No. 16-466 (2018). The Court held that the Illinois statute which allows public sector unions to charge non-member employees an agency service fee for activities connected with their collective bargaining activities as exclusive representative violates the First Amendment rights of those non-members. The Court therefore overruled its earlier decision in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).

This decision has clear implications for the continuing validity of the service fee clause in G.L. c. 150E, §2, which allows public employees to refrain from joining a public sector union and from being involved in its activities “except to the extent of making such payment of service fees to an exclusive representative as provided in [G.L. c. 150E, §12].”

The Janus decision addresses a number of points and we will be providing a more detailed analysis of the decision and its implications in the near future.

In the meantime, if you have any questions please contact any one of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Superior Court Judge Orders Temporary Prohibition of School Committee Public Speak Policy

On June 5, 2018, a Middlesex Superior Court judge issued an order enjoining the Natick School Committee from enforcing its public speak policy during meetings. While this order is not a final decision in the case and is binding only on the parties to that lawsuit, it may carry significance for other districts which have in place similar public comment rules for School Committee meetings.

The lawsuit was brought by parents of two unrelated former Natick students. They alleged that the Committee, its chair, and the interim Superintendent unconstitutionally restricted their speech during the “public speak” portion of Committee meetings. The plaintiffs requested, among other things, a preliminary injunction to prevent the school committee from enforcing its public speak policy and an order declaring that the school committee’s policy is unconstitutional.

The Committee’s policy bans (1) “improper” conduct and “defamatory” or “abusive” remarks and (2) complaints about individual school personnel or any member of the school community during the public speak period. These provisions are identical to the MASC model policy BEDH. The Committee invoked the policy during a January 2018 meeting, when one parent made comments during public speak that her child had been bullied. The Committee suspended the meeting and had the parent removed, later issuing her a no trespass order prohibiting her from attending the area where Committee meetings are held. The Committee later invoked the policy against the second parent in February and March 2018, after she commented during public speak that Natick Public Schools had created a retaliatory and hostile climate. The Committee then amended its policy to bar “vulgar language and ideas” and to authorize the Chair to stop a speaker if he/she becomes “disruptive as defined by the chair.”

The court applied the standard test to evaluate the plaintiffs’ request for an injunction, focusing on the most important, i.e., a likelihood of success on the merits. Under applicable First Amendment precedent (which the court applied to the plaintiffs’ claim under the cognate Massachusetts Declaration of Rights provision, Article 16), public bodies may establish “limited public forums,” which may be dedicated solely to the discussion of certain subjects. The court stated that the body may always impose “reasonable” rules which are “viewpoint neutral” for limited public forums. If, however, the rules are based on the content of the speech, they can only be upheld if they further a “compelling interest” and are “narrowly tailored” to serve that interest.

The court recognized that school committees have a compelling interest in protecting student and staff privacy, as well as in conducting orderly and efficient meetings. However, the court found that the committee’s policy actually restricted speech based on the viewpoint of the speaker and was “aimed to prohibit certain speech that is critical of the Natick Public Schools.” The policy’s prohibitions on improper, vulgar, and disruptive remarks vested too much discretion in the chair to silence speakers based on the particular views they expressed. Thus, the policy was overbroad. The court also noted that well-established case law in Massachusetts would invalidate the portion of the policy prohibiting “defamation” during public speak.

The Committee had argued that the Open Meeting Law gives public body chairs the authority to prohibit meeting disruptions, and that such authority was properly exercised in the case. The court disagreed, calling into question the possibility that the exercise of such authority might conflict with speakers’ state and federal free speech rights. The court made an interesting distinction between the portion of a meeting devoted to agenda items and the portion devoted to public speak. During discussion on agenda items, the chair can exercise authority over the meeting to prohibit a speaker from straying off topic or otherwise disturbing the order and efficiency of the meeting. The chair’s authority during the public comment portion, on the other hand, is far more limited. In other words, speech that is “disruptive” during discussion of agenda items is not necessarily “disruptive” during public speak. In this case, because the plaintiffs’ speech was school-related and delivered “in a calm manner” during public speak, the court found that it was not “disruptive”. Therefore, the chair did not have authority under the Open Meeting Law to restrict the speech.

Having found a likelihood of success, the court briefly assessed the other required elements for a preliminary injunction and ruled that they were satisfied. In its injunction order, however, the court recognized the sensitive nature of subject matters which might be discussed at Committee meetings and the need to protect the privacy of students and staff. The court therefore included an exception which bars naming or “otherwise identifying” individual staff or students during the public speak portion of meetings. It also stated that this exception is “for the purposes of temporary injunctive relief only.” Unfortunately, the court failed to expound on the precise meaning or parameters of this exception.

Although the court’s order is not “final” a provision in the General Laws authorizes an appeal to the Appeals Court from an interlocutory order granting an injunction, which would have to be filed within 30 days. Since the order has just been entered, we have no information as to whether the Committee intends to appeal. Given that the court’s analysis may have collateral consequences regarding standard public speak policies used by school committees and other municipal boards across the Commonwealth, we intend to monitor this case closely.

If you have questions about this decision, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Teachers’ Union Could Not Arbitrate the Termination of a Teacher with Fewer Than 90 Days in School District

The Massachusetts Appeals Court held yesterday that a public teachers’ union could not arbitrate on behalf of a former teacher who had worked for fewer than 90 days in the school district. Under the state statute governing teacher dismissals, G.L. c. 71, § 42, the former teacher was an employee at will and, as such, had no statutory due process rights controlling his termination from employment. The case is Spencer-East Brookfield Reg’l High Sch. Dist. V. Spencer-East Brookfield Teachers’ Ass’n, 17-P-103 (June 4, 2018).

In 2016, the Spencer-East Brookfield Regional School District (the “District”) terminated a teacher after only 44 days of employment. Four days after the teacher’s termination, the Spencer-East Brookfield Teachers’ Association (the “Association”) filed a grievance asserting that, prior to the teacher’s termination, the District had failed to provide him with proper mentoring and evaluation, as required by the parties’ collective bargaining agreement. To remedy the purported violation, the Association sought to have the teacher reinstated.

The court premised its decision with a summary of G.L. c. 71, § 42, which lays out three levels of procedural and substantive due process requirements and protections for teachers. The remedies in § 42 are “the exclusive remedies available to teachers for wrongful termination,” irrespective of the provisions of any applicable collective bargaining agreement. The court reviewed the three categories of requirements.

First, under § 42, teachers with professional teacher status (“PTS”) are afforded the greatest degree of due process rights and protections. PTS teachers may not be terminated except for “inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards . . . or other just cause.” PTS teachers have the right to receive written notice of the intent to terminate employment with an explanation and documentation of the reasons sufficient to allow the teacher respond. PTS teachers also have the right to seek review of a termination at an arbitral hearing, where the school district carries the burden of proof.

Second, a lesser degree of due process protection is afforded to non-PTS teachers who have been teaching in a school district for at least 90 calendar days. Such teachers are entitled, prior to termination, to receive written notice of the district’s intent to dismiss them from employment and an explanation of the grounds for the dismissal in sufficient detail to permit the teacher to respond. Such teachers also have the right to review the decision to terminate with the principal or superintendent and to present information pertaining to the basis of the decision and to the teacher’s status. The teacher may have an attorney or other representative at the meeting.

Third, non-PTS teachers who have taught for fewer than 90 calendar days are deemed employees at will and have no statutory protections under § 42. Employment at will is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all.

Here, the Association argued that, despite the teacher’s at-will employment status, it could still arbitrate purported violations of the collective bargaining agreement that preceded his termination. The court disagreed, noting that the 1993 Education Reform Act subjects all collective bargaining agreements to § 42. Moreover, the teacher had been terminated from employment before the Association filed its grievance, meaning that the teacher was no longer entitled to any benefits the collective bargaining agreement might have conferred upon him. Therefore, the Appeals Court affirmed the Superior Court’s judgment permanently staying the grievance arbitration proceeding commenced by the Association before the Department of Labor Relations.

The court did not address the question of whether, had the grievance been filed before the teacher’s termination, the purported contractual violations would have been arbitrable.

If you have questions about this decision, or about school law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Appeals Court Issues Decision Discussing School District Liability for Student Head Injuries

Today, in Stahr v. Lincoln Sudbury Reg’l High Sch. Dist., the Massachusetts Appeals Court affirmed the dismissal of a former student-athlete’s claims against the Lincoln Sudbury Regional High School District for injuries sustained during a varsity field hockey practice. The court dismissed the claims based on its determination that they fit the exception in § 10(j) of the Massachusetts Tort Claims Act, G.L. c. 258 (the “Act”). The outcome in this case highlights the limits of public employer liability under the Massachusetts Tort Claims Act, particularly where the public employer is not the direct cause of the injury. It also serves to remind school districts of the importance of implementing and adhering to proper concussion protocols as required under G.L. c. 111, § 222, and 105 C.M.R. 201.00.

Massachusetts Tort Claims Act

Under the Act, public employers – including school districts – may be held liable for injuries caused by the negligent or wrongful acts or omissions of a public employee acting within the scope of their employment. Despite the general rule, there are several exceptions in the Act that shield public employers from liability in certain situations.

Under one common exception, a district generally can’t be held liable for its actions (or lack of action) to prevent or diminish the consequences of a harmful condition or situation where the district did not “originally cause” the harmful condition or situation. See G.L. c. 258, § 10(j). This exception often comes into play when an injury is caused by a third party, such as another student. The question then becomes whether the district “originally caused” the condition or situation that led to the injury.

When does a school district “originally cause” a condition or situation?

Under Supreme Judicial Court precedent, the district has to take some “affirmative action” that “materially” contributes to creating the harmful condition or situation. See Cormier v. Lynn, 479 Mass. 35 (2018). The courts won’t hold a district liable if its action is too attenuated or if the district simply failed to prevent a harmful situation from arising.

The Stahr Case

In Stahr, the Lincoln Sudbury girls’ varsity field hockey team participated in a practice drill introduced and supervised by an alumna player acting as a volunteer coach. The players were not warned or instructed as to techniques that could endanger other players prior to the drill. During the drill, a student was struck in the face by a teammate’s field hockey stick. The head varsity coach was present on the field but was not actively supervising at the time. The blow knocked out two of the student’s teeth, caused her to lose consciousness, and resulted in a concussion.

The student’s family argued that the head coach’s decision to allow an untrained volunteer coach to supervise a new drill was the “original cause” of the student’s injury. The court disagreed, finding that the head coach’s decision was too attenuated from the actual collision that directly caused the injury. The court also refused to hold the district liable for the coaches’ alleged “lack of supervision” and “inadequate instruction” prior to the drill. Both were omissions, not affirmative acts. As such, the court likened the student’s claim to “an attempt to hold the [district] liable for failing to ensure [the student’s] safety during field hockey practice.”

The family also argued that the district was negligent in its failure to implement and follow a concussion protocol as required by G.L. c. 111, § 222, and 105 C.M.R. 201.00. After the impact, the head coach failed to take any steps to mitigate the effects of a possible concussion and did not notify the student’s parents of the proper protocol to follow in the event of a suspected concussion. The student did not receive her concussion diagnosis until five days later. Upon her return to school, she was not placed on a graduated reentry plan and her academic performance suffered over an extended period of time. She ultimately withdrew from the district.

The court held that the district could not be held liable for its failure to implement and adhere to proper concussion protocols as required by Massachusetts law. Because the failure was an omission, as opposed to an “affirmative act,” it could not be considered the “original cause” of the injury. Similarly, because the failure was an omission, it could not be classified as a “negligent intervention.”

Massachusetts Interscholastic Athletic Head Injury Law

Even though the school district could not be held liable in this case, the facts demonstrate why it is imperative that schools comply with the requirements set forth in the G.L. c. 111, § 222, and its implementing regulations located at 105 C.M.R. 201.00.

The regulations require all schools to have policies and procedures in place governing the prevention and management of sports-related head injuries. Such policies must have provisions including, but not limited to:

  1. annual training in the prevention and recognition of sports-related head injuries;
  2. instructions to coaches, athletic trainers, and volunteers to teach form, techniques, and skills and promote protective equipment use to minimize sports-related head injury;
  3. procedures for reporting head injuries or suspected concussions sustained during extra-curricular athletic activities to the school nurse and licensed athletic trainer;
  4. procedures for identifying a head injury or suspected concussion, removing an athlete from practice or competition, and referring for medical evaluation; and
  5. procedures for the development and implementation of post-concussion graduated reentry plans to school and academic activities.

See 105 C.M.R. 201.006(A). If you have any questions about these requirements, or about school law generally, please contact any of our attorneys.


This update is provided for informational purposes only and should not be considered legal advice.


Supreme Judicial Court Discusses Competing Statutory Definitions of “Employee”

On May 10, 2018, the Supreme Judicial Court held in Camargo’s Case (SJC-12368) that in determining whether someone is an employee or an independent contractor for workers’ compensation purposes, the definition of “employee” from the workers’ compensation statute, G.L. c. 152, § 1, must be applied, as opposed to the definition from the independent contractor statute, G.L. c. 149, § 148B.  Applying the appropriate definition, the court determined the plaintiff was an independent contractor and therefore not entitled to workers’ compensation benefits.

The plaintiff contracted with defendant Publishers Circulation Fulfillment, Inc. (“PCF”) as a newspaper delivery agent. After she was injured delivering newspapers and ultimately relieved of her services, she sought workers’ compensation benefits, which PCF denied on the basis that she was not an employee.  The matter was then brought to the Department of Industrial Accidents (“Department”) which is responsible for resolving workers’ compensation disputes.  The Department applied the workers’ compensation statute’s definition of “employee” and found that the claimant was an independent contractor ineligible for workers’ compensation benefits. The Plaintiff appealed, contending that the Department should have applied the independent contractor statute’s definition of “employee.”

Historically, the Department has applied the workers’ compensation statute’s definition of “employee” as well as a common law twelve (12) factor test to decide if workers are employees or independent contractors. The court affirmed this practice.  In reaching its conclusion, the court pointed out that the independent contractor statute excludes any reference to workers’ compensation benefits.  If the Legislature had intended for that statute to apply to workers’ compensation claims, it would have included language to that effect.

The court warned of the consequences of having numerous statutory definitions of “employee.” The court listed four Massachusetts laws with competing definitions of an “employee”: the workers’ compensation law, the independent contractor law, an unemployment insurance law, and a law on withholding taxes on wages.  Workers may qualify as employees for one purpose, but an independent contractor for another, making it difficult for them to comprehend their rights.  Accordingly, the court implored the Legislature to harmonize these laws or provide more guidance to workers.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law, please contact us.

This update is provided for informational purposes only  and should not be considered legal advice.

Doe v. Town of Stoughton

On April 25, 2018, the federal district court for the District of Massachusetts issued an order dismissing several claims against the Town of Stoughton, the Stoughton Public Schools Superintendent, and the Stoughton High School Principal. Those claims were brought by a former student who alleged that she was subjected to illegal sexual harassment by a teacher who groomed and abused her during her junior and senior years. The plaintiff asserted that, by allowing this to occur, the school district and its employees violated their statutory duties to protect her from harm, including duties pursuant to Title IX of the Civil Rights Act of 1964.

Of particular importance is the court’s order dismissing the Title IX claim against the Town (based on the acts of the school employees). To succeed on a Title IX claim, the plaintiff had to show that: (1) she was a student subject to harassment based on sex that was sufficiently severe and pervasive to create an abusive educational environment; and (2) an official who at a minimum had authority to address the alleged discrimination and to institute corrective measures on the student’s behalf had actual knowledge of the discrimination and failed to adequately respond or was deliberately indifferent to it.  The plaintiff’s complaint alleged that the Principal had actual knowledge of the abuse when another student reported to her that the teacher was providing the plaintiff with special treatment that she was spending excessive time with the teacher, and that on one occasion the plaintiff had left the school in the teacher’s vehicle.  The Principal allegedly initiated an investigation that involved questioning the plaintiff and the teacher, and it did not result in a finding of abuse.

The court noted that a showing of actual knowledge under Title IX requires that a defendant be deliberately indifferent to “known acts” of harassment or discrimination even applying the lenient rules for evaluating complaints the court found that this complaint failed to adequately allege that the Principal had “actual knowledge” of the abuse. The court ruled that allegations about the report to the Principal regarding special treatment, that the plaintiff was spending excessive time with the teacher, and that she was seen getting into the teacher’s vehicle did not amount to known acts of harassment or discrimination sufficient to establish the actual knowledge required by Title IX.  Consequently, the court dismissed the plaintiff’s Title IX claim against the Town. (It dismissed Title IX claims against the individuals because Title IX does not authorize such claims).

While this case shows the stringent requirements necessary to establish a school district’s culpable knowledge under Title IX, school districts should keep in mind that even in this case the facts were apparently enough to trigger an investigation by the school (albeit one that may have been superficial). Failure to so in light of a report indicating that harassment may be occurring could itself trigger liability. Moreover, the court did allow a claim to proceed against the Principal under the federal Civil Rights Act, 42 U.S.C. §1983 because the allegations showed that she had constructive knowledge of a grave risk of harm but failed to take “sufficient, easily available measures to address the risk”.

If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Civil Service Commission Addresses Truthfulness Standard in Bypasses

On April 12, 2018, the Civil Service Commission (“Commission”) released a decision, Dabene v. Boston Police Department, in which it opined on the requisite level of untruthfulness to substantiate bypass of a candidate for a police officer position.  It is well-established in decisions under the Civil Service Law, G.L. c. 71, that honesty is a necessary trait for individuals who are, or are seeking to become, a police officer.  In this case, the municipal employer bypassed a candidate for original appointment to the position of police officer based on concern that he previously provided untruthful information in his application.  The  bypass was appealed to the Commission.

In a 2015 job application with the Massachusetts State Police, there was a question posed to applicants whether they were proficient in any languages besides English; the candidate did not answer as being proficient in any such languages.  In a 2016 job application with the municipal employer, there was a question posed to applicants whether they had a basic knowledge of any languages besides English; the candidate indicated that he had a basic knowledge of both the Spanish and Italian languages after studying them in high school and college.  He then completed an application for a police officer position with the employer in 2017, where he did not answer that he had a basic knowledge of any languages other than English.  When the employer inquired why he had listed himself as having a basic knowledge of two languages in his 2016 application but not in his 2017 application, the candidate wrote that “[although I had taken classes in the past, it is clear that I have lost much of my proficiency in these languages…I did not list these languages, as I am now aware that I am not as proficient as I once was.”

In reviewing the bypass, the Commission noted that labeling candidates as untruthful “can be an inherently subjective determination that should be made only after a thorough, serious and uniform review that is mindful of the career-ending consequences that such a conclusion has on candidates seeking a career in public safety.” Here, while the candidate had received satisfactory grades in his Spanish and Italian courses, the employer relied on the fact he had listed himself as “proficient” in those languages on his State Police application but did not list himself as having a “basic knowledge” in his latest application with it.  The Commission determined this question to be highly subjective because the application provided no guidance as to what constituted “basic knowledge” and left its meaning up to interpretation.  Thus, the Commission found that the employer had not proven that the candidate was untruthful in his application and invalidated the bypass.

This case serves as important guidance for public employers in assessing and bypassing job candidates. Employers should ensure that application questions are clear and objective, and offer direction when necessary.  Additionally, when reviewing inconsistencies between application responses and background investigations, employers should be careful to determine whether a candidate may have had a genuine misunderstanding or was untruthful.  This is especially important because past decisions have generally deferred to the employer’s judgment in requiring that candidates for original appointment or promotion as police officers be found scrupulously honest.  This decision shows that the Commission will scrutinize those determinations in a bypass case.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

SJC Upholds Massachusetts Cap on Charter Schools

On April 24, 2018, the Supreme Judicial Court held in Doe No. 1 v. Secretary of Education (SJC-12275) that students who attend public schools in Massachusetts are not constitutionally entitled to attend charter schools.  Five students filed a complaint in Superior Court challenging G.L. c. 71, § 89(i), which caps the number of all charter schools in the state (with the exception of “Horace Mann II” schools) and also caps the funding that commonwealth charter schools receive.  The plaintiffs alleged that the statutory caps violate both the education clause and the equal protection clause of the Massachusetts Constitution.  The Superior Court dismissed the complaint and the students appealed.

Under the statute, there is a cap of 120 total charter schools allowed in the Commonwealth. No more than 72 of those schools may be “commonwealth charter schools,” which operate independently of the school district where they are located but still receive funding from that district.  In addition, the statute provides that the funding from the sending district to commonwealth charters may not exceed 9% of the district’s net school spending; unless the sending district is in the lowest 10% of performing districts statewide, in which case the funding limits are raised to 18%.  (The other type of charter school, a Horace Mann charter, must be approved by the school district and the bargaining unit in which it is located, and receives funding as determined by the district.)

On appeal, the court first decided that the plaintiffs had sufficiently asserted a justiciable controversy and their right to bring their claims. It then addressed the merits of those claims.

The plaintiffs attend schools that are subject to the 18% cap and have been unable to obtain spaces in charter schools through a lottery process. They alleged that the education they are receiving is constitutionally inadequate under the education clause, which imposes a duty on the Commonwealth to educate all children.  The plaintiffs claimed that this deprivation is caused by the charter school cap, which prevents them from attending a better-performing school and thereby receiving a constitutionally adequate education.  The court disagreed, ruling that while the plaintiffs may be receiving an inadequate education at the moment, they would need to demonstrate that the Commonwealth had failed to fulfill its duty to educate all of its children and that the Commonwealth’s public education plan does not offer reasonable assurance of an opportunity for an adequate education.

Alternatively, the plaintiffs alleged that the charter caps violate the equal protection clause of the Massachusetts constitution because they create two classes of children: those guaranteed to receive the opportunity for an adequate education because their districts provide one, and those in failing districts that rely on the charter lottery system for the prospect of an adequate education. The court rejected this claim as well.  It held that because the charter caps did not significantly interfere with any fundamental right to an education or target a suspect class, the court would not evaluate the statute by applying “heightened scrutiny.”  Instead the court decided that the statute could be upheld so long as it was rationally related to the furtherance of a legitimate state interest.  Noting that charter school funding affects the funding available to the district’s traditional public schools, the court concluded that the caps further the interests of students who do not attend charter schools by limiting the funding impact on their schools and serve as an effort to allocate educational funding among the Commonwealth’s students.  The court therefore held that the caps further a legitimate state interest and satisfy the “rational basis” test.

Obviously, this case has importance for school districts in Massachusetts which must annually wrestle with school budgets and enrollment issues. The court noted that charter schools and the caps continue to be a source of public debate in and outside the Legislature.  School districts are well-advised to keep abreast of developments.

If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Supreme Judicial Court Defines the Scope of State Middle and Upper Managers’ Rights to Revert or “Bump” Back to Former Tenured Civil Service Position

In a decision released March 27, 2018, the Supreme Judicial Court held that the right of a middle or upper level state manager to revert to a previously-held civil service position under G.L. c. 30, § 46D applies only to involuntary terminations, not to voluntary resignations.

The case, Spencer v. Civil Service Commission, SJC-12326, involved the former Commissioner of Correction, who voluntarily resigned from his position in July 2014. Upon his resignation, the commissioner asked that he be allowed to revert to his last tenured civil service position, a position he had not held in over 20 years. The reversion would have significantly enhanced his retirement benefits. After his request was denied by the Secretary of the Executive Office of Public Safety & Security, the former commissioner filed an appeal with the Civil Service Commission (“Commission”). The Commission dismissed the case, and the former commissioner thereafter sought judicial review. The SJC took the case on its own motion.

G.L. c. 30, § 46D permits an individual who holds a middle or upper level management position with the Commonwealth to revert or “bump” back to the tenured civil service position from which he or she was promoted upon “termination of his [or her] service.” The phrase “termination of his [or her] service” is not defined in the statute and, prior to this decision, its meaning was unsettled.

The SJC concluded that the phrase refers only to involuntary terminations. In reaching its decision, the court noted the legislative history surrounding the 1981 overhaul of the civil service scheme, as well as relevant Commission precedent. Both factors supported a finding that the reversion or “bumping” right available to state managers under G.L. c. 30, § 46D was limited solely to involuntary terminations.

The court rejected the former commissioner’s argument that he was entitled to revert back to his former civil service position under G.L. c. 30, § 46D due to the Department of Correction’s long-standing practice of allowing upper level managers to revert to their prior civil service positions shortly before retirement. The court noted that this practice allowed the managers to significantly enhance their retirement benefits at the expense of the “bumped” lower level employees and that such contrived or “sham” reversions are illegal under the state pension law. The SJC wrote: “G.L. c. 30, § 46D, was not designed to permit a high-level manager to voluntarily resign and revert, particularly when he does so for the purpose of attaining enhanced retirement benefits designed for a hazardous employment position he has not occupied in twenty-five years. Instead, § 46D is designed to provide managers involuntarily terminated the right to revert to continue their public service.”

Lastly, the court reiterated its previous ruling that an employee’s resignation is voluntary absent a showing of fraud, coercion, or duress. It also affirmed the Commission’s consistently held rule that “mere evidence that a resignation was made under threat of discharge or discipline is not enough” to establish coercion or duress.

While the ruling in Spencer is limited to state managers’ rights to reversion under G.L. c. 30, § 46D, it highlights the need for municipal employers to comply with the requirements of the civil service law, G.L. c. 31, when promoting a tenured civil service employee to a non-civil service position.

Section 37 of the civil service statute discusses the circumstances in which an appointing authority may authorize leaves of absence to permanent civil service employees. For example, a leave of absence for a period up to 14 days is at the discretion of the appointing authority, while a leave of absence for a period greater than 14 days must be in writing and only after a written request for such leave by the employee. Any leave of absence greater than three months requires prior approval of the Human Resources Division. Without such approval, the employee runs the risk of not being able to return to his or her prior civil service position at the end of such leave.

Please contact any of our attorneys if you have any questions about how this decision may impact you or if you have any other questions regarding civil service law or other labor and employment matters.

This update is provided for informational purposes only and should not be considered legal advice.